Hon. Pierre J. Dalphond moved third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), as amended.

He said: Honourable senators, today, I have the honour of opening the debate at third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts regarding the COVID-19 response and other measures.

This bill proposes to amend the Criminal Code and other acts in response to difficulties with the administration of the criminal justice system that came to light during the COVID-19 pandemic, particularly with regard to the use of new technologies. It complements Bill C-75, which we passed in 2019.

Before I summarize the amendments, I would like to sincerely thank the members of the Legal and Constitutional Affairs Committee for their comprehensive study of this bill. I also want to thank the witnesses. The committee heard from over 20 witnesses who generously shared their time and expertise with us. The committee members also had access to many documents, including briefs prepared by individuals and organizations with an interest in how the criminal justice system works. The committee devoted two meetings to the clause-by-clause consideration of the bill.

As the chair of the committee, Senator Jaffer, said yesterday, the committee proposed two amendments and made a number of observations that I hope will guide the Department of Justice and members of Parliament in the next steps.

Finally, I want to acknowledge the many constructive exchanges that we had with Senator Carignan, the bill’s critic.

Since many of the COVID-19 measures have now been lifted, you may be wondering whether this bill is still necessary. It is still just as relevant. It will enable the criminal justice system to make permanent the options for using technology in court processes that were developed or improved during the pandemic. Making these options permanently available to accused persons, inmates and other stakeholders in the criminal justice system will make our system more flexible, which I hope will help reduce court delays.

When it comes to the use of new technology, as many witnesses and members of the committee, including Senator Wetston, pointed out, it is impossible to go back to a justice system that relies on old practices that ignored the potential of new technologies and often placed unnecessary burdens on stakeholders in the criminal justice system.

For example, why insist that a police officer go to a courthouse to give a judge a written application for a warrant? That officer then has to wait in the hallway to find out whether the judge approved the application, after merely reading through the documentation, and to get the appropriate paperwork. It would be much more effective to use email for this sort of thing.

Similarly, the criminal justice system can also no longer insist that every document be submitted in hard copy or cling to unnecessarily long or costly work practices.

Why insist that hundreds of prospective jurors show up at the same time and at the same place for pre-screening when that process can be completed virtually, either in whole or in part? Why require an accused who is not represented by a lawyer to travel hundreds of kilometres from home simply to enter a guilty plea for a summary offence? There again, the use of technology that would allow the accused to attend virtually would be in the best interests of justice and the accused.

Bill S-4 responds to these and other similar issues by specifically authorizing the use of technology.

I would add that having accused persons and other stakeholders attend virtually is not a new practice introduced by Bill S-4. As a result of the passage of Bill C-75 in 2019, the current Criminal Code already includes Part XXII.01, Remote Attendance by Certain Persons. What we are doing by passing Bill S-4 is building on and adding provisions to that part.

What is more, in response to the pandemic, since March 2020, the courts have demonstrated creativity by relying on paragraph 650(2)(b) and section 715.23 of the current Criminal Code to authorize accused persons to attend court proceedings virtually in many situations.

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In March 2020, when the COVID-19 pandemic became a public health emergency of international concern, many courts were able to rely on the remote-appearance provisions that were expanded or introduced by Bill C-75 in 2019 and which had just come fully into force.

However, the pandemic has made it evident that more legislative clarity and additional mechanisms were needed. Bill S-4 will provide just that.

Former Chief Justice MacDonald, who testified before the committee on behalf of the Action Committee on Court Operations in Response to COVID-19, a special committee co‑chaired by the Chief Justice of Canada and the Minister of Justice, put it succinctly when he referred to Bill S-4 before the committee as:

. . . another important tool in the kit for judicial discretion in terms of ensuring that access to justice is as good as it can be in this country.

At the committee, all of the original provisions of the bill were carried as introduced. However, the provisions that attracted significant commentary and debate by witnesses and committee members were the bill’s proposals to allow accused persons to be able to appear remotely for the entirety of their preliminary inquiry or trial, regardless of whether witness evidence is presented.

Some committee members have expressed concerns about the ability to assess the credibility of witnesses remotely, about consequences of technological issues arising during hearings and about the potential impact of remote participation on the culture and tradition of our judicial system.

Yet we heard from many witnesses that these considerations should not be raised as reasons to oppose a greater use of remote participation. Chief Justice MacDonald in particular stated that judges have been assessing the credibility of witnesses remotely for years, and they have never intended to “sacrifice the accused’s rights or anyone’s rights in a trial at the altar of efficiency.”

Shelley Tkatch, an Alberta Crown lawyer with over 30 years of experience, emphasized how remote proceedings have improved the experiences of vulnerable witnesses by reducing the traumatic impact of testifying in open court.

We also heard from defence counsel Michael Spratt that remote proceedings can actually enhance credibility by providing judges with a clearer view of a witness’s face, and by eliminating some of the systemic problems associated with putting too much emphasis on an individual’s demeanour.

The committee also heard from a representative of the Indigenous Bar Association, Alain Bartleman, that Bill S-4 will offer an alternative to an individual asked to appear in person in a city located several hundred kilometres away from home. Indeed, he said that Bill S-4 will provide to the accused ways to minimize individual problems, including substantial financial costs to travel to the courthouse. According to him, access to justice would therefore be improved.

He also said that this bill could address some in-person concerns, or at least sidestep them, most notably translation services:

I can count on one or two fingers the number of times in which the courts have been able to properly find individuals with the appropriate linguistic competencies for . . . some dialects of Indigenous languages. Accordingly, a centralized or technological solution to enable pools of translators to assist would be a boon to the profession and certainly a boon to Indigenous clients — those Indigenous individuals in the justice system who are faced not only with obvious challenges of distance and time but also with simple communication and access to justice.

[Translation]

That said, I’ll be the first to admit that there will always be hearings where remote participation is not appropriate. Bill S-4 does not allow for remote attendance in jury trials, and nobody is suggesting that remote attendance should be the preferred mode for criminal cases.

On the contrary, I want to emphasize that in-person attendance is the basic rule, as indicated in section 715.21 of the Criminal Code, which is not being amended. I’ll quote it here:

It’s important to remember that the court can order remote attendance only in exceptional situations.

The fact is, the court cannot authorize remote attendance by video conference or telephone unless the accused requests it either for the plea, a preliminary hearing or a trial — except in the case of a jury trial, of course. In other words, it is always up to the accused. In most cases, the Crown’s consent is required as well.

Lastly, I should point out that court authorization is always required.

As was the case with Bill C 75, this bill sets out considerations for the court to take into account before authorizing attendance by audio conference or video conference. The court must take into consideration all the relevant circumstances, including the right to a fair and public hearing, the location and personal circumstances of the accused, the suitability of the location from where the accused will appear, the costs associated with appearing in person, and the nature and seriousness of the offence.

The bill also gives the judge the discretion to end the remote attendance at any time. This may be the case if technical problems arise, for example.

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After debate, the majority of the members of the committee concluded that it was not necessary to try to spell out in more detail the circumstances to consider and that judicial discretion is and remains key here and that judges are best placed to determine, on a case-by-case basis, if remote attendance is appropriate considering all relevant circumstances.

During the committee’s study of the bill, there was a consensus on the importance that a request for remote attendance by an accused result from an informed and free decision. This concern was particularly true for self-represented accused. That is why this bill further proposes safeguards for those accused persons who do not have legal representation.

Before authorizing a remote appearance for an accused or an offender who does not have access to legal assistance during the proceedings, the bill will require courts to be satisfied that the accused or offender are able to understand the proceedings and that any decisions made by them are voluntary.

Of course, if an accused appearing remotely is represented by counsel, the court must ensure that the accused has the opportunity to consult privately with counsel, and this is also provided for in the bill.

On this aspect, we heard from the Canadian Association of Elizabeth Fry Societies, represented by Ms. Emilie Coyle about the lack of appropriate rooms in jails and penitentiaries for inmates to consult remotely with counsel or to appear remotely in a way that privacy and full participation in the legal proceedings are ensured.

In this regard, Ms. Coyle shared with the committee that she visited a federal institution where the conference room was not soundproofed and where interference from the communication system was more audible than the voices of the participants in the court room.

These things must be addressed before an authorization is given by a judge, and I hope that the Department of Justice and the Attorney General will look at these things to make sure that penitentiaries are properly equipped with the necessary equipment and proper rooms for inmates to participate in their trial in privacy and with full opportunity to consult with counsel.

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[Translation]

Another aspect of the bill that received unanimous support, including from the Royal Canadian Mounted Police and the Canadian Association of Chiefs of Police, is the proposed expansion and update of the current telewarrants system. These proposals respond to the calls issued by many stakeholders, including the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Justice System, and the Canadian Association of Chiefs of Police, with a view to streamline the telewarrant process and extend its application to a greater number of situations.

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Bill S-4 proposes to replace the existing telewarrant provisions with a streamlined and standardized process that will apply to a wider variety of search warrants, investigative orders and authorizations, and that will remove certain restrictions relating to types of offences, applicants and levels of court, while maintaining the current safeguards for issuance of the underlying judicial authorizations.

One key element of the proposed provisions is that where the search warrant application is submitted by means of telecommunication that produces a written document, such as by fax or email, a peace officer will no longer be required to meet the current preconditions if it is impracticable to appear in person before a justice to make an application for a warrant.

However, of course, a police officer could still make an oral application for a search warrant by means of telecommunication — by phone, for example — if he is located in an area where it is not accessible or where access to the internet is not possible or is impracticable.

The bill also provides for a uniform approach to the duties associated with the execution of search warrants and to post‑seizure reporting requirements regardless of whether the search warrant was obtained by technological means or by personal attendance. Once more, we are going to formalize the practices.

It is also important to signal that the committee added two new clauses to the bill. The first amendment, proposed by Senator Cotter, will require the Minister of Justice to initiate one or more independent reviews on the use of remote attendance in criminal justice matters no later than three years from the date the bill receives Royal Assent, and report back to each house of Parliament within five years. This significant amendment will provide an opportunity to assess the impact of remote-attendance provisions introduced by Bill C-75 and by Bill S-4 after some years of experience.

The second amendment, which I moved myself, would require a parliamentary review of the impact of the remote-attendance provisions, including, obviously, the reports of the independent reviewers at the start of the fifth year after Royal Assent.

[Translation]

Finally, I hope that these measures that have now been added to the bill will reassure certain representatives, mainly those of the Barreau du Québec, who were concerned about the bill’s implementation without a careful enough study of the possible consequences. I wish to highlight that the committee included in its report a certain number of observations. It suggested, in particular, that the delays in the criminal justice system be re‑examined given the importance of this issue for many of the witnesses we heard from. We all recognize that delays have serious consequences for both the accused and the victims. This is a problem we must tackle on an ongoing basis.

Other observations deal with the importance of ensuring legal interpretation services of good quality, investing in the technology needed to have quality remote appearances, ensuring the availability of facilities in several locations in Canada to guarantee access to remote proceedings for everyone, and putting in place measures to ensure respect for the fundamental rights of the accused persons in custody, those who are marginalized, the victims and the witnesses.

I understand that the bill’s proposals reflect the needs of our criminal justice system as formulated by the provinces and territories in the consultations held by the Department of Justice with all stakeholders responsible for the administration of justice, and other key stakeholders in Canada, including the special committee I talked about earlier. Bill S-4 proposes a set of targeted reforms that are reasonable, measured and widely supported by Canada’s legal community. For those reasons, I invite all of you to support Bill S-4.

[English]

I understand that the observations that were made by the committee should be considered as calls to action for the federal government, the provinces and the territories, as well as other key stakeholders in the criminal justice system across Canada, including counsel and judges.

In conclusion, Bill S-4 proposes a targeted set of reforms that are sensible, measured and broadly supported by the legal community across Canada. For these reasons, I invite you all to adopt third reading of Bill S-4 in the coming days in order to send it to the House of Commons for their consideration and sober second thought, I suppose, by the members of the other place.

Thank you, meegwetch.

Hon. Pierre J. Dalphond moved second reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures).

He said: Esteemed colleagues, I rise today to start second reading of Bill S-4, whose title is a bit of a mouthful. It is called An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures).

As its long name suggests, this bill is connected to the COVID-19 pandemic, which exposed certain legal practices in the criminal justice system that were in need of modernization to avoid unnecessarily exposing stakeholders and other individuals to the virus. In addition, these changes would make the criminal justice system more efficient by taking advantage of available technologies. As the saying goes, necessity is the mother of invention.

This bill is, for all intents and purposes, identical to Bill C-23, which was introduced in the House of Commons on February 24, 2021, by the Honourable David Lametti, who was and still is the Minister of Justice and Attorney General of Canada. That bill did not make it through the other place before Parliament was dissolved last summer for the general election.

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The content of Bill C-23 was the result of significant discussions among the federal, provincial and territorial governments. I understand that the Minister of Justice and Attorney General of Canada has met several times since the beginning of the pandemic with his provincial and territorial counterparts to discuss the impact the pandemic has had on the justice system and has taken careful note of their suggestions for possible legislative reform.

Similarly, Bill C-23 had been informed by the work of the Action Committee on Court Operations in Response to COVID-19, a committee co-chaired by the Right Honourable Chief Justice of the Supreme Court, Richard Wagner, and the Minister of Justice.

The pandemic has been a challenge for all Canadian courts. This bill, if adopted, will provide certainty and clarity for courts and litigants, and it will standardize the availability of modernized procedures across the country.

[Translation]

It makes sense for the government to reintroduce this bill, which will provide greater flexibility in the administration of criminal justice and free up judges to hear more cases. This will help ensure that the timelines set out by the Supreme Court of Canada in Jordan are respected.

This time, the government is reintroducing its initiative in the Senate for several reasons. First, this is not a money bill. Second, the bill reflects a broad consensus among justice system stakeholders who see these changes as likely to improve and simplify the administration of criminal justice. Third, introducing the bill in the Senate will maximize the parliamentary system’s ability to study government bills.

In the case of this government bill, we will be acting not as a chamber of sober second thought, but as the instigating house, which can make amendments without seeking the consent of the House of Commons via message.

Nonetheless, we will have to undertake a careful study of the 37 pages describing the proposed amendments, as well as the 27 pages of explanatory notes. The Standing Senate Committee on Legal and Constitutional Affairs is the most appropriate venue for an in-depth study of these amendments, and I hope it will deal with the bill quickly.

For now, let me lay out the main provisions and explain what they would do.

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[English]

First, the bill seeks to clarify and expand the current remote appearance regime that explicitly allows accused persons to appear by video conference or audio conference.

Colleagues, you may remember that in Bill C-75, that we adopted in 2019, we added six new provisions in Part XXII.01 called Remote Attendance by Certain Persons.

The general principle outlined in section 715.21 is that “. . . a person who appears at, participates in or presides at a proceeding shall do so personally.” The use of “. . . audioconference or videoconference, in accordance with the rules of court . . .” is permitted in certain circumstances once certain requirements are met. It’s not a general access.

Bill C-75 added provisions found at other parts of the Criminal Code to facilitate the administration of justice, including the possibility of a remote appearance by the prosecutor or the lawyer acting for the accused at the appearance stage of the criminal proceedings where the accused is asked to enter a guilty or not guilty plea. There have been varied interpretations of these provisions and their scope.

The bill will clarify the ability of accused persons to appear by video conference during preliminary inquiry hearings and trials for summary and indictable offences, including when witness evidence is being heard, except where evidence is being taken before a jury. In other words, jury trials will have to be in person.

However, it is important to mention that these trials and preliminary inquiries will be held only by consent. The accused has to be agreeable to proceed that way, and where the court is of the opinion that it is appropriate, with regard to all the circumstances, including listed factors, such as the suitability of the location from where the accused person will appear and the right to a fair and public hearing.

The bill will also permit an accused to appear by audio conference when pleading guilty or receiving a sentence, but only if video conferencing is not available, with the accused’s consent, and where the court is satisfied that despite not being able to see the accused, judges and lawyers are able to assess the conditions for accepting a guilty plea.

The bill includes some important safeguards for accused persons appearing remotely, whether by audio conference or video conference and regardless of the stage of the criminal process. For example, if an accused person appearing remotely is represented by counsel, such person would need to be given the opportunity to speak with counsel privately.

Moreover, if an accused person is appearing remotely and is not represented by a lawyer, the court would need to ensure that such a person is able to understand the proceedings and that any decisions he or she makes are voluntary.

Second, the bill would also increase the use of technology in the jury selection process, including permitting prospective jurors to participate by video conference, since the jury selection process often requires the physical presence of a large number of people at the courthouse or at another venue.

Bill S-4 will allow the remote participation of prospective jurors by video conference for the jury selection process but only under certain circumstances and with the consent of the parties and at the discretion of the court. This will provide courts with greater flexibility in allowing the jury selection process to take place in less-crowded locations.

In some provinces, sometimes 100 to 500 people are called for jury selection. That is a lot of people waiting in corridors and in large rooms, especially during a pandemic.

This will provide courts with greater flexibility in allowing the jury selection process to take place in a safer manner. It will ensure that a lack of access to technology does not hinder a person’s ability to participate in the process, and the option to appear in person will continue to be available where technology is not provided.

Bill S-4 will allow for the enhanced use of technology to draw the names of prospective jurors in the jury selection process. As you may know, the list is made up of 100 or more names and somebody has to draw by hand from the list one name at a time. That takes some time and involves some manipulation. So the bill will authorize the use of technology to draw names of prospective jurors in the jury selection process. It is a type of electronic bingo.

Currently, this part of jury selection is done manually. The bill will ensure electronic or automated technology is used to draw the cards at random. This is a change that should contribute to greater efficiency for jury trials across Canada. Incidentally, this was tried in British Columbia during the pandemic. They used an electronic device to randomly select the first 10 jurors to be called to the room in order to avoid people mingling.

Third, the bill will expand and update the existing telewarrant regime so that applications for a wider variety of search warrants, authorizations and orders can be made by telecommunication instead of a police liaison officer attending the office of a judge. When I say “attending the office of a judge,” it means attending in the corridor next to the office of the judge. The papers are presented to the judge, and they are returned signed, or not, by the judge.

Under the current telewarrant framework, the police can apply for a handful of search warrants and judicial authorizations to investigate only indictable offences where it is impracticable to appear personally to present the application to a specially designated justice or judge as the case may be. A parallel process also exists to obtain wiretap authorizations by telecommunication in very limited cases.

During the height of the pandemic, reduced in-person court operations have presented challenges to law enforcement officials in obtaining some search warrants and other judicial authorizations that cannot be applied for electronically.

The bill proposes to expand the telewarrant process to a wider range of search warrants and other judicial authorizations provided in the Criminal Code, such as tracking warrants and production orders. The amendments will also expand the availability of the telewarrant process by making it available in relation to any offence, not only an indictable offence.

This is a procedural change that I think will improve the situation and will unfortunately deprive, from time to time, a judge from having a brief conversation with a police officer.

This will not affect the legal threshold for obtaining a warrant. That will remain the same. The judge, from whom the authorization is sought, will have to ensure the legal threshold is complied with.

The bill will streamline the current telewarrant regime in a number of ways. First, it will permit applications to be presented by means of telecommunication, such as by email, without the need to show that it is impracticable for officers to appear personally before a justice. These changes will result in a more efficient use of police time and court resources while respecting social distancing guidelines when applicable.

The bill will maintain provisions that allow police to make oral applications when needed, but only in cases where a justice or a judge is satisfied that it is impracticable for the officer to present their application in written form via telecommunication. That could be the case for a very urgent application.

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Furthermore, the bill would remove the limitations on who can access the telewarrant process and who can issue telewarrants. The new process will be available to any law enforcement entity — and not only to a peace officer — who may apply for such an authorization and any level of court that may issue such an authorization, order or warrant.

Four, the bill proposes to introduce some flexibility in the process of fingerprinting including when it could be done if it were not done at the first opportunity.

During the pandemic, officers have faced situations where obtaining fingerprints of people charged with committing a criminal offence in a timely way was causing some difficulties and even health risks for those involved. There will be, for example, that person who is charged and refuses to go to the police station so as not to be exposed to other people or just the danger of being too close to the police officers who do the fingerprinting.

The need to have fingerprints collected at the time of arrest has placed both law enforcement officials and accused persons at unnecessary risk on occasions. The ability of police to obtain fingerprints has been disrupted during the pandemic due to physical distancing requirements, which has led to significant operational challenges. It’s difficult to hold the thumb of somebody else and still be at a meter of distance.

Bill S-4 would allow fingerprinting of accused persons to occur at the bail stage or at later stages of the criminal justice process where previous attempts at fingerprinting were not possible due to exceptional circumstances, such as the risks posed by COVID-19. But I want to be clear. This bill would not change the rules in terms of who may be subject to identification procedures such as fingerprinting. It would simply allow for fingerprinting to occur at a later date without the police force losing the ability to collect the fingerprints.

[Translation]

Fifth, the bill contains a series of amendments that empower the courts to manage certain administrative and other matters more effectively.

The Criminal Code currently permits courts to adopt case management rules when accused persons are represented by counsel. However, when the accused is unrepresented, all administrative matters covered by rules of court must be dealt with in the courtroom before a judge, as is done for accused persons who are represented by counsel. In some cases, these matters could be dealt with by an officer of the court. Unfortunately, this judicial time is not being used effectively.

This bill proposes to expand the courts’ ability to make these rules for unrepresented accused persons and to ensure they are enforced, allowing court personnel to deal, out of court, with administrative matters for those cases as well.

Sixth, certain amendments would harmonize the rules that apply to the execution and seized property reporting stages for all search warrants, whether they are sought in person or by electronic means.

Under the current system, a report must be prepared when a seizure takes place. The report is sent to different people depending on whether it is prepared under a regular warrant or a telewarrant. In addition, the system does not make it easy to locate a copy of the report for the person subject to the seizure. The bill would harmonize the process at this level, which would increase access to information on the execution of search warrants and the property seized during a search.

Finally, the bill also includes technical amendments arising mainly from the passage of Bill C-75 in 2019, as well as related amendments to other federal acts. It would seem that when we passed Bill C-75, certain changes to the numbering of sections and related administrative changes were not made. Let us correct this.

I invite you to read the bill at the time of day when you are most alert, because that will help. To all my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs, I will say this: We will soon be meeting to examine the pages of amendments with the assistance of representatives of the Department of Justice, who will be able to clarify the meaning of the provisions.

In the meantime, I would be happy to respond to your questions and comments. Feel free to contact my office if you require further information.

(On motion of Senator Wells, debate adjourned.)

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